State supreme court took stand on Brockton power plant site

Monday

Aug 4, 2014 at 2:49 AMAug 5, 2014 at 9:52 AM

In its decision on the Brockton power plant, the Supreme Judicial Court upholds that state policy that “environmental justice is the equal protection and meaningful involvement of all people with respect to the development, implementation and enforcement of environmental laws, regulations and policies and the equitable distribution of environmental benefits.” (Second of two parts)

Staff Reporter

BROCKTON – While Thursday’s decision over the city’s drinking water seemed to hold the key to the future of the proposed Brockton power plant, it was a separate Supreme Judicial Court decision that made history.

For the first time, the court addressed the state’s environmental justice policy.

According to the state’s policy, “environmental justice is the equal protection and meaningful involvement of all people with respect to the development, implementation and enforcement of environmental laws, regulations and policies and the equitable distribution of environmental benefits.”

The policy was drafted as a response to the “disproportionate burden of industrial pollution and lack of regulatory enforcement” in minority and low-income communities.

In their argument, the opponents of the power plant contended that the Energy Facilities Siting Board, the state agency that conducts the permitting process for power plants, did not properly apply the environmental justice policy in their assessment of Brockton Power LLC’s application.

However, Brockton Power and the siting board argued that their application of the environmental justice policy was not subject to judicial review given a passage in the environmental justice policy that disclaims “any right, benefit or trust responsibility, substantive or procedural, enforceable at law or equity” as well as “any right to judicial review involving compliance or noncompliance.”

In its decision, the Supreme Judicial Court found that Brockton Power and the siting board’s contention failed and “the board’s application of the EJ (environmental justice) policy is subject to judicial review.”

In a decision that she described as a “mixed bag” for the state’s environmental justice policy, Veronica Eady, the vice president of healthy communities and environmental justice for the Conservation Law Foundation based in Boston, said that the court’s decision on judicial review was a positive.

“It doesn’t create a new right that you can go to court and sue over the environmental justice policy, but the Supreme Judicial Court can look at whether the EFSB (Energy Facilities Siting Board) properly complied with the policy,” Eady said.

However, where environmental justice took “a step backwards,” Eady said, was in the court’s decision to allow the Energy Facilities Siting Board to “piggyback” on the standards used in the Massachusetts Environmental Protection Act rather than compelling them to draft their own guidelines to incorporate environmental justice principles into its consideration of petitions to construct energy generating facilities.

“The court had this opportunity to make it more than boilerplate and really give it some teeth,” Eady said.

In the future, Eady said she expects to see environmental justice groups from across the state putting pressure on Gov. Deval Patrick to sign an executive order strengthening the environmental justice policy and pressuring state legislators to pass legislation that would do the same.